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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

November 5, 2021

OSHA, CMS Release Details on Employer COVID-19 Vaccination, Testing Mandates

The Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) recently unveiled the details of new regulations that are part of the Biden administration’s latest push to get more Americans vaccinated. These new federal vaccine mandates are expected to have a sweeping reach, affecting two-thirds of the private sector workforce and 17 million workers at 76,000 health care facilities. 

Under the CMS interim final rule (CMS Rule), and subject to limited exceptions, all employees of defined health care facilities that participate in Medicare or Medicaid will have to be fully vaccinated by January 4, 2022. The CMS Rule requires health care employees to receive their first dose of a COVID-19 vaccine by December 5, 2021, and their second dose by January 4, 2022. 

Under the OSHA Emergency Temporary Standard (OSHA Rule), by December 5, 2021, businesses with 100 or more employees will be required to (1) adopt a written mandatory vaccination policy or an alternative policy requiring weekly COVID-19 testing and face coverings for unvaccinated employees, (2) provide paid leave for employees to get vaccinated and to recover from any related side effects, and (3) ensure that unvaccinated workers wear face coverings in the workplace. The OSHA Rule further requires all covered employees to either be vaccinated or commence weekly testing by January 4, 2022.

Below are some of the other key components of the OSHA Rule

•    To determine whether a business meets the 100-employee threshold, the count is to be made at a firm- or company-wide level as opposed to a single site of employment. Included in the tally are remote workers and part-time workers as well as temporary and seasonal workers who are employed directly by the employer (as opposed to a temporary staffing agency), so long as they are employed at any time while the OSHA Rule remains in effect. Independent contractors are not counted.

•    To meet the definition of “mandatory vaccination policy,” the policy must require “vaccination of all employees, including all new employees as soon as practicable, other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”

•    Employees will need to be fully vaccinated—which is defined under the OSHA Rule as two weeks after their second dose of the Pfizer-BioNTech or Moderna vaccine or two weeks after single-dose Johnson & Johnson vaccine—to avoid weekly testing. 

•    Employers can opt to mandate vaccinations across the board or allow workers to instead choose to get tested every seven days, so long as they wear face coverings while at work. 

•    Employers are responsible for providing leave and paying costs associated with COVID-19 vaccinations, including the time to get the shot(s). For each dose of the vaccine, employees are allowed up to four hours of paid leave and reasonable paid sick leave for any side effects that result, if needed. 

•    Employers are not obligated to pay for the time unvaccinated employees spend getting tested each week, the costs related to the testing, or any face coverings purchased. 

•    Employees who test positive for COVID-19 must be removed from the workplace, regardless of their vaccination status, and cannot be permitted to return to work until the employer (1) receives a negative COVID-19 test result, (2) meets the return-to-work criteria in the CDC’s “Isolation Guidance,” or (3) receives a recommendation from a licensed health care provider that the employee can return to work. 

•    Employees who exclusively work remotely, outdoors, or where no other people are present are exempt from the OSHA Rule.

•    Employers will be subject to certain recordkeeping and reporting requirements. More specifically, covered employers must (1) maintain records of each employee’s vaccination status and each test result provided by employees who undergo mandatory weekly testing and (2) report work-related COVID-19 fatalities to OSHA within eight hours and report work-related COVID-19 in-patient hospitalizations within 24 hours.

OSHA also recently published a COVID-19 Plan Template and Frequently Asked Questions.

With respect to the CMS Rule, it will apply to the following Medicare- and Medicaid-certified providers:

•    Ambulatory surgical centers
•    Hospices 
•    Psychiatric residential treatment facilities 
•    Programs of all-inclusive care for the elderly 
•    Hospitals 
•    Long-term care facilities, including skilled nursing facilities and nursing homes
•    Intermediate care facilities (ICFs) for individuals with intellectual disabilities
•    Home health agencies 
•    Comprehensive outpatient rehabilitation facilities
•    Critical access hospitals
•    Clinics, rehabilitation agencies, and public health agencies as providers of outpatient
physical therapy and speech-language pathology services
•    Community mental health centers
•    Home infusion therapy suppliers
•    Rural health clinics  
•    End-stage renal disease facilities 

Covered employees under the CMS Rule include:

•    Facility employees
•    Licensed practitioners
•    Students, trainees, and volunteers
•    Individuals who provide care, treatment, or other services for the facility,
 its patients, or both under contract or other arrangement
•    Administrative staff, facility leadership, volunteer or other fiduciary board members, housekeeping and food services, and others
•    Any individual who performs duties at any site of care or has the potential to have contact with anyone at the site of care, including staff or patients

Many of the covered facilities under the CMS Rule may already be covered by a state-issued vaccine mandate applicable to certain health care employers.  

Under both the CMS Rule and the OSHA Rule, individuals who cannot be vaccinated because of medical conditions or sincerely held religious beliefs, practices, or observances may be entitled to a reasonable accommodation. In granting such exemptions or accommodations, employers must ensure that they minimize the risk of transmission of COVID-19 to at-risk individuals, in keeping with their obligation to protect the health and safety of patients. Barclay Damon recently published a legal alert in response to updated guidance published by the EEOC addressing religious objections to COVID-19 vaccine mandates.

We are aware of other multiservice providers who may have programs that fall under the CMS Rule (e.g., those that have ICFs, but otherwise fall under the OSHA Rule). OSHA has stated that the OSHA Rule does not apply to workplaces covered by the CMS Rule, but there may be providers that have separate and distinct workplaces governed by different rules.

Further complicating matters, the United States Court of Appeals for the Fifth Circuit, the federal court with appellate jurisdiction over the district courts in Louisiana, Mississippi, and Texas, recently issued a stay to temporarily block the Biden administration’s new vaccine rules, citing “grave statutory and constitutional concerns.” Barclay Damon is closely monitoring this and other legal proceedings involving challenges to the federal vaccine rules, and until we know more, we recommend that businesses continue preparing to comply.  

Barclay Damon will be hosting a webinar on the OSHA Rule on Thursday, November 11, 2021, with topics to include covered employers and employees, employer obligations, disability and religious accommodations, testing and screening, liability issues, and, of course, legal challenges to the federal vaccine rules. Click here to register for the webinar, which will be presented by Rosemary Enright, Labor & Employment Practice Group Leader, and Michael Sciotti, partner. Barclay Damon is also planning to host a webinar for health care providers on the CMS Rule in the near future.

If you have any questions regarding the content of this alert, please contact Bob Heary, Labor & Employment Practice Area chair, at rheary@barclaydamon.com; Rob Thorpe, partner, at rthorpe@barclaydamon.com; Margaret Surowka, counsel, at msurowka@barclaydamon.com; Payne Horning, law clerk, at phorning@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com

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